[COURT or CRIMINAL APPEAL]

1951 Present: Nagalingam J. (President), Basnayake 3. and
Gunasekara J.

NAIDE, Appellant, and THE KING, Respondent.

 APPEAL 58 OF 1951, WITH APPLICATION 84

S. C. 15-M. C. Kurunegala, 454.
 

Austin Jayasuriya for the accused appellant.

T. S. Fernando, Crown Counsel, with Boyd Jayasuriya, Crown Counsel, for the Crown.

Cur. adv. vult.

NAGALINGAM J.

The appellant in this case has been found guilty of the offence of murder and has been sentenced to death. The only point raised at the hearing of this appeal is that the accused has been prejudiced as a result of a misdirection in the charge of the learned trial Judge.

It would be advantageous to set out very briefly the salient facts necessary for a proper appreciation of the point debated at the Bar. The appellant made an unsworn statement from the dock in the course of which he admitted having stabbed the deceased woman, his sister-in-law. He also narrated the circumstances under which he inflicted the injuries. He said that he had come homo that morning from the field hungry and asked his sister-in-law for rice. According to him, the deceased woman abused him saying, ' I am not going to serve you rice; you had better obtain your rice from your own mother ", using the word '' tho ". The appellant says he then was making his way into the kitchen to serve himself a meal of rice when the deceased woman came at him with an eakle broom, abused him and struck him with it and that while he was being so abused and struck with the eakle broom he picked up a knife that was on the floor of the kitchen and stabbed the deceased several times as he was provoked. The injured woman in her dying deposition, however, gave a different version of the incidents that led up to the injuries being inflicted on her. According to her, on the morning of the day in question while she Was alone in the house the appellant attempted to outrage her modesty, she resisted and the appellant stabbed her in consequence.

The learned trial Judge very carefully dealt with all the aspects of the case and in regard to the defence set up on the ground of grave and sudden provocation directed the jury as follows (I have for convenience of reference separately lettered various parts of this passage):-

A. "In his story he tells us that the trouble first arose near the kitchen. He was angry and he was abused, contemptuously abused when he asked for a plate of rice. Nevertheless he decided to get the rice for himself, whereupon this woman came at him with an eakle broom, abused him again and struck him. That is the grave and sudden provocation which he asks you to accept as sufficient to reduce the offence to one of culpable homicide not amounting to murder. The question as to whether the provocation offered, assuming that you believe it was offered, was sufficient to deprive him of his self-control so that under the influence of that provocation he acted as he did is a matter entirely for you to decide.

It is important that you should not forget the emphasis that the law places on the need that the provocation should be grave.
It must be provocation of a kind that a man belonging to the class of society to which the accused belongs would reasonably be expected to resent, and it must be provocation of such gravity as one would expect a person of that class to resent so deeply as to temporarily deprive of the power of self-control."

B. " Now, making every allowance for the person provoked you must ask yourselves whether the mode of resentment, even if you accept the whole of the accused's story as true, was or was not grossly disproportionate to the nature of the provocation given."

C. " Let me read out to you a passage from a recognised text book on the Indian Law dealing with exceptions on grave and sudden provocation which is similar to the Section in our Penal Code."

D. '' This is what is said: ' It must not, howeve